Opinion
560 CA 18–01710
05-03-2019
John BOBIK, Claimant–Appellant, v. STATE of New York, Defendant–Respondent. (Claim No. 127961.)
FRANZBLAU DRATCH, P.C., NEW YORK CITY (BRIAN M. DRATCH OF COUNSEL), FOR CLAIMANT–APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR DEFENDANT–RESPONDENT.
FRANZBLAU DRATCH, P.C., NEW YORK CITY (BRIAN M. DRATCH OF COUNSEL), FOR CLAIMANT–APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Claimant, an inmate at a correctional facility, commenced this action seeking damages for injuries he allegedly sustained when he slipped and fell while mowing the facility's lawn. We reject claimant's contention that the determination of the Court of Claims dismissing the claim following trial is against the weight of the evidence."While it is well settled that this Court has the authority to independently consider the weight of the evidence on an appeal in a nonjury case, deference is still afforded to the findings of the [court] where, as here, they are based largely on credibility determinations" ( Payne v. State of New York, 144 A.D.3d 1490, 1491, 41 N.Y.S.3d 615 [4th Dept. 2016] [internal quotation marks omitted]; see Janczylik v. State of New York, 126 A.D.3d 1485, 1485, 6 N.Y.S.3d 886 [4th Dept. 2015] ). Here, we conclude that a fair interpretation of the evidence supports the court's determination that claimant failed to establish by a preponderance of the evidence, inter alia, that the conditions present on the day of the accident were unsafe or that the correction officer ordered claimant to mow the section of hill where he allegedly slipped (see Mosley v. State of New York, 150 A.D.3d 1659, 1660, 55 N.Y.S.3d 554 [4th Dept. 2017] ). The court reasonably credited the testimony of the correction officer supervising claimant at the time of the accident that the grass was not wet and that claimant did not appear to be wet after the accident, undermining claimant's allegations that he slipped on wet grass and fell to the wet ground. In addition, claimant failed to present evidence that the correction officer specifically directed him to mow the patch of grass on the hill where he slipped.
We reject claimant's request to take judicial notice of proof he failed to present at trial (see Matter of Carano, 96 A.D.3d 1556, 1556, 946 N.Y.S.2d 755 [4th Dept. 2012] ; Sanders v. Tim Hortons, 57 A.D.3d 1419, 1420, 869 N.Y.S.2d 721 [4th Dept. 2008] ).